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Accident Compensation Cases

Davidoff v Accident Compensation Corporation (DC, 14/08/09)

Judgment Text

Judge M J Beattie
The applicant has made application for leave to appeal to the High Court in respect of a Judgment delivered by His Honour Judge J Cadenhead on 14 April 2009, being decision 54/09. 
The issue in the appeal was the correctness or otherwise of the respondent's decision of 20 March 2008, whereby the respondent determined that the applicant did not satisfy the criteria for weekly compensation. 
In the Review Decision which had preceded the appeal, the Reviewer had found that the applicant was not an earner immediately before his incapacity, nor indeed could he be said to have been an earner for the extended period before incapacity as provided in Clause 43 of Schedule 1 to the Act. 
Those same issues of fact were considered by Judge Cadenhead in the appeal and he found, based on the facts that had been presented to him, that the applicant had ceased to be an earner in any capacity on 20 February 2008, that his incapacity as certified by his GP, commenced on 10 March 2008, and which thereby established that the applicant was not an earner immediately before his incapacity. 
The background to that finding made by Judge Cadenhead was that the applicant resided in a backpacker hostel at Kerikeri, had so resided there for some considerable period, and he had been engaged on casual work for a number of employers on a day- by-day basis, and that his employment was at all times only of a casual nature. 
The findings of fact made by the Learned Judge were not of facts which were in dispute and his decision simply applied those facts to the statutory provisions which are required to be satisfied by a claimant if that claimant was to be eligible for weekly compensation. 
In the case of this applicant the Learned Judge found that he could not satisfy the criteria of eligibility, and it was for this reason that he dismissed the appeal. 
Whilst the Court has received some hand-written documents from the applicant purporting to be submissions in support of the application for leave to appeal to the High Court, it has to be said that those documents are not helpful, are largely unintelligible, and do not bear on the issue of whether there is a question of law in issue which ought to be considered by the High Court. 
In submissions for the respondent, in opposition to the granting of leave, Mr Tui as counsel, submitted that the grounds set out in the various documents from the appellant disclosed no question of law and that the grounds referred to had no merit. Mr Tui submitted that the evidence which was before the Court made it clear that the appellant was not an earner immediately before the date of incapacity on 10 March 2008, or within 14 days prior thereto, and the finding of the Learned Judge to that effect was a finding of fact. 
Counsel submitted that the Judge's decision was based wholly on the findings of fact as to whether or not the criteria for eligibility had been satisfied, and that no question of law arose which would be capable of serious and bona fide argument. 
I agree with counsel's submissions that the issue in the appeal was determined wholly on the findings of fact, which facts were not in dispute, and that there is no question of law capable of bona fide and serious dispute which ought to be referred to the High Court for determination. 
At the conclusion of his decision the Learned Judge did make an observation about a factual matter which he had not considered supported the applicant's claim for weekly compensation entitlement, as that claim had been advanced, but nevertheless that it may open another avenue for this applicant to pursue, should he wish to do so. 
It is the case that the applicant suffered his back injury on 25 February 2008, whilst he was digging out some palm trees. It seems that this particular casual employment was for a day only where a cash payment of $100 was made. At both the Review hearing and at the appeal the applicant firmly asserted that he was not self-employed doing that work, but both the Reviewer and Judge Cadenhead determined that this was not earnings as an employee. 
The issue of whether the applicant could be classes as being self-employed immediately before the commencement of incapacity was not a matter which the respondent had earlier determined, as it had not been claimed and therefore the Judge ruled that this issue was outside the ambit of the appeal, and he simply noted: “It is open for the applicant to pursue that avenue should he so desire.” 
As the issue before the Court was whether the applicant, as an employee, had earnings as an employee immediately before his incapacity and evidence was found to be against such a finding, that finding and the decision which the Judge made, was a decision which is not one which raises any issue of law. Accordingly, leave to appeal to the High Court is refused. 

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